The therapist called attention to the training of female therapists in particular. He made the point that in the preparation and training of new therapists, especially female therapists, there is not adequate training on how to deal with patients that make sexual advances toward a therapist. It’s an important issue worth discussing, but could the example he used give more information than needed to make a point?
On the surface the presenting therapist did not reveal very much information but the therapist also identified himself and the town in which he works. He also declared that it is an agency where there was a transfer from a female therapist to a male therapist.
Why would a therapist decide to discuss a case on a non-secured Internet discussion forum? A private practitioner may claim that the isolated nature of his or her job leaves few other options. However, at licensed mental health clinics there is or should be a supervisory system in place that should provide all the consultation necessary.
Virtually all-mental health clinics have on staff a medical director, usually a psychiatrist, and a team of senior mental health professionals that can provide supervision to junior staff and consultation to other senior staff members. In addition many have or should have education budgets that can provide staff training and continuing education.
Why then would a professional employed at such a clinic go to a non-secured Internet list and discuss cases? There can be several reasons including but not limited to: the clinic is remiss in its obligations to provide adequate supervision and consultation to its staff or so it is believed by the presenter. The presenter is not confident in the professional advice given at that agency. If either of these implied allegations were true it could mean that treatment is substandard at that particular agency or so it is believed by the presenter.
True or not the presenter may have unintentionally put his agency at some risk and liability. Even if one could argue that the patients permission were not necessary, did he obtain consent of the clinic execs to post patients’ information? Was there some obligation to do so since this involved other members of his staff?
Could a member of this family identify themselves by putting the pieces together? Or, could someone who knows them figure it out? The chances may seem limited but with mental health seekers using the internet to learn about therapists in general and their therapists in particular coming across their therapists’ comments may not be as difficult as it may seem. It is not too difficult to foresee someone making a claim that they recognized themselves on an Internet discussion list. What arguments could they make and how strong would their claim be? Let’s examine both sides of the argument.
The therapist is claiming that they are putting forth a composite case and therefore it represents no particular patient or family. Nevertheless if someone who was a client of the agency where our presenter was employed now or in the past stated they believed they recognized themselves how would the presenter or the agency counter their claims? It would be easy for the alleged party to document that they were a patient of the agency and whom they contacted. All they need to substantiate their claim is to be part a family of four who sought help for a teenager whose behavior may be considered promiscuous. A request for their records can support their claim. The agency can’t simply deny that it was some other family because to do so would violate that family’s confidentiality. So at the very least we have a costly and messy litigation. It’s easy to see in this litigious society how someone can claim emotional damages at reading about themselves in a public forum as part of some family where everyone was promiscuous in one way or another.
One argument that a client can employ is to question the need to describe an entire family as promiscuous if all one wished to do was make a point about “Novice Female Therapists”. Why not just say that sometimes young or attractive therapists who are female need to be aware that patients may make sexual advances? What is the point of providing information about other family members and the mother? This could be seen as a gratuitous and unnecessary characterization and possibly fit Reamer’s concern about possible conflicts of interest (for example, when the practitioner’s disclosure is self-serving). See Dr.Frederic G. Reamer Interview With Dr. John Riolo
Then there is a HIPAA Violation complaint. What if a patient who thought they recognized themselves filed a complaint under HIPAA? This leads to several other questions.
Do case discussions on online discussion groups pose potential violations of HIPAA? What is sufficient disguise to avoid a HIPAA violation? See How Disguised is Disguised Enough: Reasonable to whom?
Who are the covered entities? Many private practitioners in mental health believe they are not covered entities as long as they do not submit bills electronically. [1] However are they exempt from other aspects of the HIPAA regulations?
In the example above the presenter is part of an agency that would almost certainly be covered entities. If in fact their going to a non-secured Internet site either and discussing his clients either to make a point or to seek advice is indeed a HIPAA violation this involves not just the therapists. It may be one thing for private practitioners to discuss patients on the internet for free advice or to look important but if they are an employee of an agency they are putting the agency at risk. And if Dr. Arnold Rosenbaum, CEO and Medical Director of Seacrest is correct and Physicians and providers are not protected from civil HIPAA litigation by their standard malpractice, errors and omissions, or general liability policies then that is a big risk. See HIPAA Liability More than Meets the Eye
Agency directors and Directors of Field Instruction of professional schools need to be far more vigilant regarding their staff and students using the Internet to discuss patients. If not they could find themselves in some unpleasant and costly litigation.
1] Social workers have new Technology standards that state, Social workers should adhere to the privacy and security standards of applicable laws such as the Health Insurance Portability and Accountability Act (HIPAA) and other jurisdictional laws when performing services electronically. These laws address electronic transactions, patient rights, and allowable disclosure and include requirements regarding data protection, firewalls, password protection, and audit trails. See https://www.socialworkers.org/practice/standards/NASWTechnologyStandards.pdf